Debating the NJAC: Article 124C, Excessive Delegation and the Separation of Powers: A Response – II (Guest Post)

(In a two-part series, Ritwika Sharma and Faiza Rahman respond to my essay on Article 124C, arguing that the provision is entirely constitutional)

Among the many contentious issues that engaged the attention of the Supreme Court in the NJAC case was Article 124C which has been alleged to be violative of the basic feature of the independence of the judiciary. It has also been attacked for entrusting the Parliament with a function that, till now, formed part of the Constitution.

On close scrutiny, it becomes evident that Article 124C empowers the Parliament in two respects: it commences with vesting Parliament with the legislative competence to regulate the procedure for appointment of Supreme Court and High Court judges. Thereafter, it provides the legal basis for the Parliament to empower the NJAC to lay down by regulations the procedure for discharge of its functions, manner of selection of persons and other matters considered necessary.

In Part I of our defence of Article 124C, it is argued that Article 124C cannot be held to be violative of the independence of the judiciary on the following grounds:

First, independence of the judiciary does not connote independence from Parliamentary law. In fact, this was a proposition that was expressly rejected by the framers of the Constitution. Due regard must be had to Article 50 in this context. Article 50, which is one of the Directive Principles of State Policy, states that “The State shall take steps to separate the judiciary from the executive in the public services of the State.

A brief glimpse into the drafting history of this Article would reveal that an amendment proposed by Prof. KT Shah which sought independence of the judiciary from Parliament as well, was expressly rejected by the Constituent Assembly. Prof. KT Shah moved the following amendment in the Constituent Assembly Debate dated 23rd May 1949 (Constituent Assembly Debates, Vol. VIII, Book 3, p. 218):

Sir, I move:

That under Chapter IV of Part V, the following new article be added:-

“102-A. Subject to this constitution the Judiciary in India shall be completely separate from and wholly independent of the Executive or the Legislature.”

Prof. K.T Shah while proposing Article 102-A stated-

“In this amendment: it is not merely the separation of judiciary from the Executive, but also its independence, and I want it to be also separate from the legislature and the executive.

However, Prof. KT Shah’s proposed amendment was decisively rejected by the Constituent Assembly. Shri KM Munshi on 23rd May 1949 (Constituent Assembly Debates, Vol. VIII, Book 3, p. 220-221) opposed the inclusion of Article 102A stating that:

“This Constitution is based on an entirely different principle, adopting the British Model. We have invested the Judiciary with as much independence as is possessed by the Privy Council in England and to large extent, by the Supreme Court of America; but any water-tight compartment of powers have been rejected. That is with regard to separation of powers.

Evidently, the framers of the Constitution did not envisage the inclusion of a standalone article which would have enforced a strict separation of powers between the three branches of government. A construction of judicial independence which seeks independence from Parliament, or Parliamentary law would anyway be an anomaly given the framework of our Constitution. In fact, the scheme of the Constitution itself reveals that certain pertinent aspects pertaining to judicial functioning are regulated by Parliamentary law. Some illustrative examples of such laws are:

1. The Judges (Inquiry) Act, 1968 which regulates the procedure of investigation during the impeachment proceedings against a judge. This legislation emanates from the enabling Article 124(5) by virtue of which Parliament is empowered by law to regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4). An observation was made in this regard in Sarojini Ramaswami v. Union of India, (1992) 4 SCC 506 this Hon’ble Court:

Article 124(5) mandates enactment of a parliamentary law to regulate the investigation and proof of misbehaviour or incapacity of a Judge under Clause (4) and pursuant to it the Judges (Inquiry) Act, 1968 has been enacted by the Parliament….” [para 24]

2. Similarly, Parliament has enacted the Supreme Court Judges (Salaries and Conditions of Service) Act, 1958 and the High Court Judges (Salaries and Conditions of Service) Act, 1954. The powers to enact both these laws can be respectively traced to Articles 125 and 221 of the Constitution. These provisions allow the Parliament to enact laws determining the salaries, pension and other privileges of Judges of Supreme Court (Article 125), and of the High Court (Article 221).

3. Under Article 138, Parliament may by law confer on the Supreme Court such further jurisdiction and powers with respect to any of the matters in the Union List. Consequently, Parliament has widened the jurisdiction of the Supreme Court by means of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

Similar provisions pertaining to other aspects of judicial functioning exist throughout Chapter IV of Part V (the Union Judiciary) and Chapter V of Part VI (the High Courts in the States) of the Constitution. Essentially, Article 124C empowers the Parliament to enact a law regulating the procedure for appointment of judges of the Supreme Court and High Court, something which is entirely within its legislative competence. It would be anybody’s case that the method to remove judges as well fixation of their salaries and conditions of service are aspects vital to the independence of the judiciary. These laws cited above are just as vulnerable to amendment by the Parliament as provisions of the NJAC Act would be. The framers of the Constitution could not have intended to compromise with the independence of the judiciary by vesting Parliament with the power to enact such laws. In fact, such provisions are reinforcement of the wisdom of the Parliament to enact laws which are not prejudicial to judicial independence. Clearly, regulation of certain facets of judicial functioning by means of Parliamentary law is not an innovation devised by Article 124C.

Secondly, it argued that Articles 124 and 217, as they originally stood, did not lay down the entire procedure for appointment of judges. The first limb of this argument hinges upon the crucial distinction between “eligibility” and “suitability”. Articles 124 and 217 only laid down “eligibility” criteria for appointment of judges which, at the most, are the minimum threshold criteria for filtering prospective candidates. The difference between “eligibility” and “suitability” was discussed in Mahesh Chandra Gupta v. Union of India, (2009) 8 SCC 273:

At this stage, we may state that, there is a basic difference between “eligibility” and “suitability”. The process of judging the fitness of a person to be appointed as a High Court Judge falls in the realm of suitability. Similarly, the process of consultation falls in the realm of suitability. On the other hand, eligibility at the threshold stage comes under Article 217(2)(b). This dichotomy between suitability and eligibility finds place in Article 217(1) in juxtaposition to Article 217(2)….” [para 39]

The Supreme Court further held in Mahesh Chandra Gupta

The appointment of a Judge is an executive function of the President. Article 217(1) prescribes the constitutional requirement of “consultation”. Fitness of a person to be appointed a Judge of the High Court is evaluated in the consultation process (see Basu’s Commentary on the Constitution of India, 6th Edn., p. 234). Once this dichotomy is kept in mind, then, it becomes clear that evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. Article 217(2), therefore, prescribes a threshold limit or an entry point for a person to become qualified to be a High Court Judge whereas Article 217(1) provides for a procedure to be followed before a person could be appointed as a High Court Judge, which procedure is designed to test the fitness of a person to be so appointed: his character, his integrity, his competence, his knowledge and the like.” [para 41]

Articles 124(3) and 217(2) must be viewed against the backdrop of the distinction between “eligibility” and “suitability”, as enunciated upon in Mahesh Chandra Gupta. When Article 124(3) mandates that a person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and (a) has been for at least five years a Judge of a High Court or of two or more High Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more High Courts in succession; or (c) is a distinguished jurist, in the opinion of the President, it only lays down the minimum eligibility criteria that need to be fulfilled for a person to be considered for appointment. Similarly, Article 217(2) lays down minimum eligibility criteria for appointment of a person as a judge of a High Court. Clearly, the framers of the Constitution found sufficient to only enumerate the “eligibility criteria” within the four corners of the Constitution. “Suitability criteria” would have to be located somewhere else.

The second limb of this argument addresses the issue of “suitability criteria”. Such criteria which are meant to assess the fitness of prospective candidates are considered in accordance with the Memorandum Showing the Procedure for Appointment of the Chief Justice of India and Judges of the Supreme Court of India as well as the Memorandum Showing the Procedure for Appointment and Transfer of Chief Justices and Judges of High Courts, documents which have been agreed to jointly by the Chief Justice of India and the Ministry of Law and Justice. Considerations such as inter se seniority of puisne judges, and conditions such as medical fitness are some of the aspects which are to be considered under these Memoranda. For instance, for appointment of the Chief Justice of India, the Memorandum of Procedure for the Supreme Court lays down that:

Appointment to the office of the Chief Justice of India should be of the seniormost Judge of the Supreme Court considered fit to hold the office. The Union Minister of Law, Justice and Company Affairs would, at the appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice of India.” [para 2]

In the Memorandum for High Courts also, seniority is considered to be a determining factor:

For purposes of elevation as Chief Justices the inter-se seniority of puisne Judges will be reckoned on the basis of their seniority in their own High Courts and they will be considered for appointment as Chief Justices in other High Courts when their turn would normally have come for being considered for such appointment in their own High Courts.” [para 3]

Hence, seniority is used as one of the criteria to determine suitability of a candidate under the Memoranda. The Memoranda, for both the Supreme Court and the High Courts lay down the procedure to be followed for appointment of the Chief Justice, Acting Chief Justice, permanent judges, additional judges, ad hoc judges and acting judges, as and when applicable. The Memorandum of Procedure for the High Courts also specifically lays down the procedure for transfer of a Judge from one High Court to another High Court. Keeping in view the framework of Articles 124 and 217, and the Memoranda of Procedure, it can be inferred that the framers of the Constitution did not find it imperative to include suitability criteria within the provisions of the Constitution. In fact, thus far, the task of laying down suitability criteria is being performed by the executive by means of these memoranda of procedure. It is difficult to imagine how the independence of the judiciary would be violated if this task is now entrusted to the Parliament under Article 124C.

In light of the above, it is submitted that Article 124C is not violative of the independence of the judiciary. In fact, it is an attempt to put flesh and blood into the skeletal structure that the 99th Amendment seeks to create. In the second part of this essay, we would proceed to argue that Article 124C is not an instance of excessive delegation, and falls within the permissible limits of delegated legislation.

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Filed under Basic structure, Judicial Independence

One response to “Debating the NJAC: Article 124C, Excessive Delegation and the Separation of Powers: A Response – II (Guest Post)

  1. Pingback: Debating the NJAC: Round-Up and (Tentative) Conclusions | Indian Constitutional Law and Philosophy

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